Episode 62: Jack Balkin
Memory and Authority: The Uses of History in Constitutional Interpretation
Welcome back, dear listeners, to season nine of Digging a Hole! We’re just as surprised as you are that we haven’t been taken off the air yet, but we’re here and ready to keep producing hit after hit— at least while Yale Law School keeps funding us, anyway. After a summer of roller-coaster legal and political action, we’re ready to help you navigate the turbulent times ahead. But before we get to current events, it’s worth dwelling on history. And today we’re excited to have on the pod our colleague Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, to discuss his new book, sure to be a classic in constitutional theory, Memory and Authority: The Uses of History in Constitutional Interpretation.
To start off, Sam engages Balkin over the question of why, under the latter’s taxonomy, history isn’t a unique modality of constitutional interpretation. Next, Balkin explains what constitutional lawyers do, what makes their argumentative tools unique, and the relationship between history, memory, and the rhetoric of law. We dive into (what else?) originalism, both as an academic discipline with fancy conferences in San Diego and as a political ideology that reigns supreme in the courts (at least in cafeteria-form). If we haven’t piqued your interest, this episode features for the first time on the pod, according to our memory but perhaps not our history, one Mr. Hegel. Strap in and enjoy.
This podcast is generously supported by Themis Bar Review.
Referenced Readings
Constitutional Interpretation by Philip Bobbitt
The Philosophy of History by G.W.F. Hegel
State Repression and the Labors of Memory by Elizabeth Jelin
“Interdisciplinarity as Colonization” by Jack Balkin
“The Crystalline Structure of Legal Thought” by Jack Balkin
Introduction to the Philosophy of History by G.W.F. Hegel
Zahkor: Jewish History and Jewish Memory by Yosef Hayim Yerushalmi
“Collective Memory and Historical Consciousness” by Amos Funkenstein
“What is a Nation?” by Ernest Renan
What are Sam & David reading?
Sam is reading Pankaj Mishra’s forthcoming book about memory and authority, The World after Gaza, which is an interesting comparison for thinking about American liberals and memory today.
David is reading Bruce Kimball and Daniel R. Coquillette’s fascinating history of Harvard Law School, The Intellectual Sword: Harvard Law School, the Second Century.
Episode Transcript
[00:00:00] David: This podcast is generously supported by Themis Bar Review. For more information about Themis, check out themisbar.com. Thank you very much, and now back to the show.
[00:00:30] David: All right, all right, all right. Welcome to Digging a Hole: The Legal Theory Podcast. On this podcast, my co-host, the great Sam Moyn, and I, David Schleicher, talk about legal theory and whatever else is on our minds. How was your summer, Sam?
[00:00:53] Sam: It was great. I moved into my new position as head of Grace Hopper College, which means I had to unpack a lot of boxes. And I spent time, with your help, denouncing old people for the purposes of a forthcoming book. How was your summer?
[00:01:14] David: My summer was great. You moved into swanky old digs--
[00:01:19] Sam: Absolutely.
[00:01:19] David: and then started denouncing swanky old people. It’s a, you’ve got a weird relationship to the past, which maybe we’ll ... My summer was terrific. I did none of those things. But I ... A little bit of history here and there. But getting deep into the law and economics of property. Very exciting stuff. All right.
[00:01:43] Sam: Let’s note that it’s a congratulatory moment because you also became the Walter Meyer Professor of Property and Urban Law.
[00:01:51] David: It’s true. Very exciting. The previous holder of this was Bob Ellickson, who’s one of my great heroes and mentors. And so it’s a good honor. And so I’m really excited about it. Any thoughts on scholarly ethics or executive removal? Seems to be the topic du jour.
[00:02:13] Sam: Not on the latter. I mean, on the former, I think we should absolutely denounce sloppiness when you see it. But whether it’s happened in any particular case is, of course, in dispute.
[00:02:36] David: As a owner of Very Sharp Elbows, I’m not too pious about these things. But it is, there’s been a lot of popcorn to pass around. So I hope you’re all out there, who know what we’re talking about, are enjoying it. Who do we have on the pod today?
[00:02:53] Sam: We have our dear colleague and friend, Jack Balkin, talking about his new book.
[00:02:58] David: His new book? This is not going to be ... This is about constitutional interpretation, not about the internet. So if you’re here to hear Jack talk about the structure of technology companies, you can come to the next time we have Jack on. But this time we’re talking about history, rhetoric, and constitutional interpretation. Get excited, people.
[00:03:22] David: All right, all right, all right. Today is a very exciting day for us on the pod because we have the one and only Jack Balkin joining us today. Jack doesn’t really need an introduction, our colleague at Yale Law School, the impresario of Balkinization, expert on many, many, many things from artificial intelligence to, as we’ll see, the deep recesses of history. Today we’re going to be talking about his new and fantastic book, Memory and Authority: The Uses of History in Constitutional Interpretation. Welcome to the pod, Jack.
[00:04:09] Balkin: Thanks for having me.
[00:04:12] Sam: This is a collection of essays in some sense, and there are various tranches. I’m sure there’s some grand unity, but I just want to start with the--
[00:04:22] Balkin: You know, that is what you said about my last book, Sam. I think it’s projection.
[00:04:26] Sam: I actually think the last book was more unified, but--
[00:04:30] Balkin: There you are.
[00:04:30] Sam: this one is great because--
[00:04:33] David: I’m not 100% sure either of you are super coherent to myself, for myself, so there you go.
[00:04:38] Sam: Totally. So the first tranche, just taking that one, is about, I would say, a case for the subordination of history to modalities. And the claim is that you can only use history within a modality. So could you just tell us what that argument is? What are the modalities?
[00:05:08] Balkin: I would put it a little differently. I would say that lawyers ... This is true not only of history, it’s true of every other form of knowledge. Lawyers basically fit other forms of knowledge into their professional needs, and they structure other kinds of knowledge, medical knowledge, for example, or other kinds of knowledge, into things that lawyers like to argue about. And since legal culture in the United States has a bunch of standard moves, which Philip Bobbitt called modalities, and I have a slightly different list than he does, but Philip’s basic idea was this is how you make arguments, and he’s right about that. And so history being a form of knowledge, it basically gets the same treatment. It gets channeled into these existing forms of legal culture for good or for ill. Because one of the things that happens when one form of knowledge basically appropriates another form of knowledge, as you well know, Sam, is that there’s all sorts of problems of translation, but there’s also transformations, right, in what it does and how it does it. And that’s what happens with law and history, not just constitutional history, but history generally. When lawyers are trying to make arguments about what we should do, what the law says, and what’s required of us, when they are in that mode, as opposed to a very different mode of legal discourse, this is really what happens. So one way of summarizing it is that law is a very complicated form of rhetoric, and it tends to reduce other forms of knowledge into its existing forms of rhetoric.
[00:06:46] Sam: So, that’s great. I mean, I’ll just mention that prominently in the course of laying that out, you do talk about how, contrary to Bobbitt’s original scheme, history is not one modality, but is distributed amongst the modalities. And just as a threshold question about that, I mean, maybe that’s true as a matter of the rhetoric of American constitutional argument, but even in the way you were just putting it, it sounded like you were saying history is, in a sense, external to law, and then is used by lawyers in various ways given their pre-existing modalities. And I take it that Philip’s point, I mean, he may have been wrong as a matter of U.S. constitutional law, is that legal argument is always already historicist. And you could imagine a legal culture, I assume most legal cultures, allow you to just make kind of purely, pure appeals to history. Like, the past is authoritative, the legal past is authoritative, how do I resolve this case? That’s the way it was done before. And so I don’t see why conceptually there couldn’t--
[00:08:16] Balkin: [unintelligible]
[00:08:16] Sam: Okay, but I just want to finish the question. So I don’t see why conceptually history couldn’t be its own modality in law. That’s the basic question I want to ask.
[00:08:26] Balkin: So you’re running together several things, let’s separate them out. The first is, of course, law is historicist, in the sense that it can be understood as a historical product which changes over time historically.
[00:08:38] Sam: Right.
[00:08:38] Balkin: That is not the same thing as saying that the way lawyers use history, right?
[00:08:43] Sam: Oh, I get that.
[00:08:44] Balkin: That’s not the same claim as the claim about how lawyers use history.
[00:08:47] Sam: I get that, yeah.
[00:08:48] Balkin: One is from the intellectual historian standpoint, or social theorist standpoint, and the other is a lawyer basically trying to persuade another audience. That’s the first point. The second point is, obviously, legal arguments make use of history. They do all the time.
[00:09:04] Sam: Sure.
[00:09:05] Balkin: Precedential arguments, arguments from convention, arguments from tradition, arguments from honored authority are all deeply historical. The claim is not that history is external to law. The question is what law does to historical knowledge in order to persuade audiences. That’s the central question.
[00:09:22] Sam: I get that, but that’s all very good, and I really was just responding not to the--
[00:09:27] Balkin: And then the last thing I would say is--
[00:09:28] Sam: Oh, sorry.
[00:09:29] Balkin: It is a big mistake, is a canard, I would think, to think there’s such a thing as a pure command from history. History commands nothing.
[00:09:37] Sam: I, totally, totally--
[00:09:38] Balkin: History commands nothing.
[00:09:39] Sam: I agree.
[00:09:40] Balkin: People, they act as and speak as if history commanded them to do something, but that is not actually what’s going on. When you parse the rhetoric of what they’re doing, it’s a very complicated way of invoking values and norms through the medium of history in order to persuade an audience that’s present.
[00:09:59] Sam: Absolutely.
[00:10:00] Balkin: We’re always talking in the present to each other about the meaning of the past and what it means for us.
[00:10:06] Sam: Absolutely. So just to be clear, I was mainly responding in the framing of the question to what you said at the start of the podcast, which was that, it kind of made it sound like history is external to law and lawyers have to figure out how to use it. But I get totally your framing. But even within that framing, why couldn’t there be a historicist form of legal argument, a modality that is not another modality? It’s just, here’s a set of facts the judge has called on to figure out what to do and the lawyers say, this is the way that all the prior judges have reached that outcome. We have a tradition. I mean, the common law was that, made that historicist modality central to every case. So I guess I’m still not understanding why when you distribute history amongst the different modalities, as you persuasively do, why there still couldn’t be history just all by itself as a modality of legal argument.
[00:11:18] Balkin: Well, here’s an easy way of seeing it. I know someone were to say to you, look, here are a bunch of decisions that were rendered by the Supreme Court of South Africa. Okay, I win. Does that work in America?
[00:11:32] Sam: Absolutely. That’s Edward Coke, you know, time out of mind. This is how we did it.
[00:11:34] Balkin: That doesn’t work.
[00:11:36] Sam: What’s the authority of the law? History.
[00:11:38] Balkin: That doesn’t work.
[00:11:39] Sam: Oh, okay. I don’t know what this is.
[00:11:41] Balkin: Because in order to make an argument about the Constitution, you have to explain why the argument you’re making is an argument about the Constitution and not just simply a good idea, or not just some fact that happened in the past. “By the way, did you know Alcibiades gave this following speech to the Athenians? Okay, therefore, Rule 23 allows this class action. Done.” That’s, that’s not how law works. Law connects claims about authority to other kinds of knowledge, and it does so through various legal forms. That’s why there’s not a purely historical argument, but that many legal arguments make use of history. Because an argument from tradition is different than an argument from precedent, judicial precedent. And an argument from convention is different than an argument from the people’s customs and lived forms of life. They are connecting the law to the past in different ways. So you always have to have that intermediation of authority between the past and the present.
[00:12:40] David: So can I ask a question about how unique interpretive arguments or legal arguments or constitutional arguments are from just other forms of public rhetoric? So I know I can, because I’m about to. Almost all of your modalities, and you broaden Bobbitt’s list of modalities to 11, I think, and almost all of them could appear in arguments over things like whether the income tax should be increased or decreased or whether we should reform our permitting process. They’re just forms of public policy rhetoric. Like, we make arguments from structure, consequences, arguments from precedent, convention, customs, national ethos, political tradition, and honored tradition, maybe a little less from natural law and text. But your key opponents across the book, kind of various species of originalists, are centered on the idea that interpretive arguments are fundamentally different from other types of arguments. Am I right in thinking that the underlying claim here is that interpretation is not, in fact, a different category for rhetoric, that we use the same tools in interpretation that we do in arguing about tax rates?
[00:13:49] Balkin: Well, yes and no. And so let me tell you the sense you’re right and the sense it’s a little different. So it is true that a lot of what lawyers do is similar to what people who are not lawyers do when they argue about what we should do. And we can see, and by the way, people outside of law invoke history to talk about what we should do in the present. And so there are different ways of doing it, you see. And so those things too, if we were to look at the topics, these Aristotelian topics of rhetoric, we would discover there are a lot of similarities. And I think that’s right. And anybody who goes to law school figures it out pretty quickly. But I think many of the people that I am all constantly talking with, originalists, for example, they want to say at the same time, and there’s a lot of truth to this, that there are certain kinds of knowledges you pick up in law, certain kinds of skills and forms of arguing you pick up in law that other people don’t do. And that they want to emphasize those particular kinds of arguments as being the ones that really give you authority. And the other ones are kind of like additional on the side. Now, I think that that’s not as clear cut as people claim. But it has to do with the last tranche of the book, to use Sam’s argument, which is people wanting to claim that there is a special kind of knowledge that lawyers have that historians don’t have and that everybody else doesn’t have. And that’s what really gives constitutional arguments their heft. And you get to the point sometimes, I don’t know if you’ve ever come across this, where people get frustrated and say, look, I’m not doing history. Even though, of course, all the arguments are historical, I’m doing law and you historians just don’t get it. You don’t get that I’m making legal knowledge, making legal argument. So I think the jury, if you’ll pardon the legal expression, is out on the question of how different they are, but that’s what people on the other side would say.
[00:15:52] Sam: So I want to build on David’s question, but also go back to the very interesting things you said in the earlier part of the conversation. It’s sort of just to have you lay out your, let’s say, philosophy of history, because it seems like you understand by history, at least as invoked by lawyers, a resource for rhetorical ploys, claims about legal authority, at least when lawyers mobilize history. And so like any good, you know, Crit or ex-Crit, at least of a certain branch of that movement, you are very interested in inventories of argument. And you’re basically a theorist of discourse in this book, like in much of your other work. It’s just here, it’s historical discourse. But, you know, I’m going to do something that I haven’t done on this podcast, which is invoke Hegel, who said history--
[00:17:09] David: Triple word score!
[00:17:09] Sam: means two things. Triple word score. I mean, there are no valuable letters in the name Hegel, unfortunately.
[00:17:16] Balkin: But when you put them all together, the synthesis is valuable.
[00:17:22] Sam: That’s right. So he says something that’s, I think, accurate, which is that history means two things. And he is talking about the German language, but it applies to ours. It means what happened, res gestae, and the narration of what happened, narratio rerum gestarum. And you don’t think the first category is, in a sense, interesting or real?
[00:17:48] Balkin: No, that’s not true at all. That’s not true at all.
[00:17:50] Sam: Well, so explain, because it seems like this book is entirely about how history becomes part of the rhetorical armamentarium of lawyers.
[00:18:03] Balkin: It’s true. But if it’s true that a lot of the book is about how lawyers use history, but to say that it’s about how lawyers use history, presumes they’re using something, you see?
[00:18:12] Sam: Sure.
[00:18:13] Balkin: So in other words, you’re having an interaction with--
[00:18:15] Sam: But there’s no pure appeal to history, because you have your version and I have mine.
[00:18:19] Balkin: Well, that’s an argument that we’ll go over to the history department and have.
[00:18:24] Sam: Oh, I see. Okay, so it’s their problem.
[00:18:25] Balkin: So in other words, in the history department, that argument has already been going on for a long time.
[00:18:30] Sam: Okay.
[00:18:31] Balkin: But one of the reasons why the book is not called History and Authority, but Memory and Authority, is because lawyers are particularly interested in a particular kind of thing that historians do, and that is the creation of memory. Remembering what happened in the past and explaining it to others and drawing... And in lawyers’ case, sometimes with respect to public historians, explaining what it means for us today and what we should do in light of it. So a lot of what lawyers are about is memory, but memory sits on top of history in the first sense of Hegel’s sense. That is, there are things that happened. Historians try very hard to figure out what it was and try to explain it to other people. But in doing so, and again, this is the kind of conversations you’ll have over in the history department, they decide, you know, people haven’t been paying enough attention to X. They’ve been paying too much attention to Y. And I really want you to think about X now, you see, because if you don’t think about X, you won’t really understand what was going on and what it means for us today. Lawyers do that a lot. They are what I call, borrowing a term from Elizabeth Jelin, who wrote about the history of mass atrocities, they are memory entrepreneurs. They try to get you to understand what happened in a different way. And often that’s because they want to win a case or they want to make a persuasive argument and opinion. And so they invoke memory and they construct memory. Now, historians construct memory too, but they construct memory for very different purposes and according to a different set of professional norms. And so the fights historians have about the relationship between history and memory is different in some ways than the fights that lawyers have.
[00:20:20] Sam: So just to be super clear, sorry David, are you saying that whatever history is, as opposed to the narration of history, it’s kind of not something lawyers are concerned with in the first instance?
[00:20:38] Balkin: I don’t agree.
[00:20:39] Sam: Okay. I just didn’t understand. So, because it sounded like you were saying it might be that in another institutional location, what happened is like what a theory of history should be about.
[00:20:55] Balkin: No!
[00:20:55] Sam: Okay.
[00:20:56] Balkin: This is, you’re making a very deep question about disciplines. So here’s the most general point, way of putting it. Disciplines are interested in forms of knowledge and forms of knowing. Different disciplines are interested in what, in knowledge in different ways.
[00:21:13] Sam: Yes.
[00:21:14] Balkin: History is interested in knowledge of a certain kind for the purposes of academic historians. Lawyers are also interested in the very same knowledge, but what interests them and how they use it will be different. So I’m not making a relativist claim about history. I’m not making a claim that history is bunk. I’m not, you know, the famous Ford quote, I’m not making any of those claims at all.
[00:21:36] Sam: Oh no, I get that.
[00:21:37] Balkin: I’m interested in what lawyers are doing with historical knowledge and also the very fraught relationships they sometimes have with academic historians who have a very different set of professional norms and also the problems that academic historians face when they enter the fray of legal argument. And as you know, there’s a literature of academic historians talking about the problems of what it means to join an amicus brief, all the compromises they have to make and under what conditions they would even do it. And is it a good, even a good idea to get involved with these crazy lawyers who are going to use the work we do, sometimes ignore it too, for all sorts of inappropriate purposes?
[00:22:19] Sam: Totally. So supposing I got interested in like, how did the legal community making uses of the Constitution get itself historically constituted, would that be something that I’d have to study in the history department? Because I thought there’s a literature about, you know, how did it happen that we are dealing with originalists today?
[00:22:44] Balkin: Yeah.
[00:22:45] Sam: And that’s in part a legal literature. And it’s about like, how did it happen that this form of rhetoric became hegemonic? And not what the reform of rhetoric is.
[00:22:55] Balkin: Exactly. There’s a beautiful discussion about disciplines and how they work and how they interpenetrate each other. It might well be, well, it’s obviously the question of how originalism rose as a form of knowledge and practice is the kind of thing that a sociologist of knowledge would study or the kind of thing an intellectual historian would study. If only we had an intellectual historian in this podcast. Oh, here we do. So, yeah, but it might well be that it might be useful for that person to either also understand the other discipline or at least have some passing familiarity with it. And so this is one of the reasons why you actually need interdisciplinary understanding because certain projects actually require the facility with these different kinds of knowledge and also what the different kinds of knowledge do to each other. I don’t know if you know this, but many years ago I wrote an essay, which is based on a speech I gave, called “Interdisciplinarity as Colonization.” And that’s partly tongue-in-cheek because I was interested in how different disciplines colonize the knowledge produced by other disciplines and the kinds of conflicts that result from them. And my examples there were economics. I was talking about how economics knowledge is basically used by lawyers. Sometimes the way that economists like, and sometimes the way that economists do not like at all. But the same thing we could say with respect to history. And you are right, Sam, that one of my very first articles, in fact, it’s either my first or my second article is called “The Crystalline Structure of Legal Thought,” and that is a compendium of different kinds of arguments people made in criminal law, tort law, and I think to some degree, contract law. I’ve been fascinated by these questions all throughout my career.
[00:24:43] David: OK, great. That’s exactly where I wanted to go here. So I wanted to start off with something that seems left out of your list of modalities. And this is a discussion of judicial competence or institutional role. The only discussion of institutional competence is mentioned in the limited competence of a founding generation and a little bit in your discussion of Bruen. But I thought this was really weird as an omission because nothing could be more common to constitutional argument than discussing whether judges should be involved in making decisions, whatever the right answer is. From passive virtues to Thayerianism and it’s not really reducible to consequences. It’s a question, you could if you wanted to, but you could reduce everything to consequences. And so I thought that was strange. And it led to me to kind of a broader question about what role different types of arguments or modalities are playing in your structure, which is that it seems like anything that allows for many types of arguments, 11 different types of ways of understanding problems, and doesn’t provide a clear authority structure among them is just going to be hopelessly indeterminate, and as a result, leaves questions about like if this is going to be how judges do things, why have judges do them rather than someone more democratically responsive or something?
[00:26:04] Balkin: So the kind of arguments you’re talking about are structural arguments because they have to do with the relationship between the different branches. There are some things that judges are, is appropriate for judges to do and some things it’s not appropriate for them to do. That’s an argument from structure. Now it actually turns out to be the case that structural arguments often reduce either to arguments from purpose or arguments from consequences. So the famous Bickel article about the passive virtues is a continuous of a meditation on structure, but most of the ways that he thinks about structure are all consequential. And there are other people who basically want to make arguments from purpose, design. That is to say, what was the design of the Constitution? And they argue that Article III was designed to have a certain role for judges. And if you step outside that role, you’re acting inconsistently with purpose. So that’s why structural arguments kind of like branch out into purpose. So that’s the first point. The second point is, Philip tended to think that these were silos. You know, they, you know, never the twain shall meet. That’s not how I think about it. I come from a tradition of studying rhetoric, including classical rhetoric and topoi, topics, are fluid and they move from one to the other. They change historically. They’re tied to cultures. They’re not, you know, you’re not set in the stone. And that leads me to the second part of your question, which is this. One way of thinking about how lawyers make arguments is as a kind of a set of tools of analysis and persuasion, problem solving, analysis, and persuasion. That’s the blunt way to put it. So like most, you know, bricoleurs, they take the tools that are laid at hand and they apply them and they don’t make a big deal about whether or not they picked up the same tool each time for each problem. What they’re interested in doing is solving a particular problem and persuading an audience. And that’s why there’s this looseness that you identified in your question, because lawyers are problem solvers and persuaders, which isn’t the same thing, by the way. The logic of justification, the logic of discovery are not always the same logics, but that’s what they do. And so they have all these tools and where they get them from. They got them from the last group of lawyers. And where do they get them from? They got them from the last group of lawyers and on and on and on, right, as part of the culture. What I think-- it’s been an enormous stumbling block and shibboleth for the theorist for a long time to say, oh, I need to know which is the master modality and that, what’s the decision tree under that and under that. But that’s based on a false conception of how reasoning is occurring. That is, if you think of it as a toolkit, if you think of it as problem-solving techniques, then you would not think there would be a master modality. You would think there’s, its coherence, its coherence model rather than a model of a decision tree.
[00:29:08] David: Yeah. So--
[00:29:08] Balkin: That doesn’t stop people from trying to create decision trees.
[00:29:11] David: Well, right. But that that just leads to the question like, about like, a kind of Bramble Brush critiques of this way of thinking about the world, which is just like, it’s just like, it’s too loose for us to trust people who are not empowered to, you know, don’t have research arms, don’t have like-- that leaving power that is this loose in the hands of people who aren’t equipped in certain respects, whether it is through democratic purchase or through something else is, is somehow unsatisfying. And so this is like the--
[00:29:48] Balkin: You really talk, you could talk to Sam about that.
[00:29:51] David: Oh, I’m asking the question because it seemed a little churlish in Sam’s hands. It’s a little bit like talking his book or something. So I, it was left to me to do so. So like what about what about that critique?
[00:30:06] Balkin: This is a very old problem with respect to the legal profession. It didn’t arise last night. The classic way, the classic way, and anybody at the Yale Law School, or the other law school, has to deal with it. The classic way in which it was resolved was to claim, as Coke did, that there was an artificial reason of the law. And this artificial reason was the basis of the lawyer’s authority to pronounce upon the law. I tend to be a bit skeptical. But I also know, having been trained as a lawyer and occasionally being in interactions with other people, that occasionally I will pound the table and talk, well, this is how you make the legal argument and you’re not making a legal argument, you’re making a different kind of argument. So it’s actually been, you know, I’ve been swallowed by the blob, too. I mean, I’ve been, I’ve been professionally trained so that I kind of believe the artificial reason of the law thesis. But at the same time, as somebody who studies the history of thought and the history, sociology of knowledge, I kind of know it’s not as clear cut as lawyers like to pretend. That is actually the last several, three chapters of the book is about that. I mean, what do you think about that, David? Are you, I mean, think about, think about, you know, at one point, Dick Posner suggested we should just dispense with the artificial reason of law and just engage in policy analysis. I mean, a lot of his career was that. Yeah.
[00:31:38] David: You know, I, we’re talking about your book, not mine. But what I guess what I’d say is that I’m a little less convinced about the expert abilities of many other agencies also, so it makes me a little less worried about the inexpert abilities of judges. But that all institutions should be worried about their [unintelligible]. And I think more broadly, like one of the things that things like this actually quite convince me of is that we might want to sort, if we’re going to leave, continue leaving authority in judges’ hands, we might want to give them more resources to answer their questions, or at least that that’s a necessary thing. So I’ll leave this out. We did, we had almost this exact interaction when we had Jamal Greene on the podcast talking about the value of kind of bringing European-style interpretation to courts. And the question was like, does this mean they should have staffs of economists? I don’t know. Maybe.
[00:32:35] Balkin: As law becomes demystified—and this really was Posner’s project—you move in the direction that David is suggesting. But then you’re mystifying other forms of knowledge, which you claim are, which you claim are like real knowledge, you see, and therefore can really be of service.
[00:32:57] Sam: All right. I’m not going to engage on that one, which, although it’s incredibly interesting. Let’s turn to the second tranche, you know, more briefly, which is about originalism. And, you know, it’s not your first rodeo in even devising your own theory of originalism. But I guess what, you know, I just want to give you a chance to tell the listeners what’s new about this take, because I would have said, reading these essays in this place, that they kind of fall into that other form of scholarship, which is more the kind of external historicist view of, you know, why Americans are predisposed to this form of rhetoric. And there’s a claim about the kind of twins separated at birth, that originalism and living constitutionalism are, so a kind of sociology of knowledge approach, not a kind of inventory of legal argument as a lawyer sees it approach. But regardless, I mean, how does this section of the book fit in to this to the book as a whole?
[00:34:17] Balkin: Yeah, so if you look at the way the book is written, there are two sort of sociology of knowledge chapters on the fight between originalists and their opponents. How did originalism come to be? What does it reflect? And then we launch into an internalist explanation of my view about how to, what kind of originalism is what you really want, which then then leads to a discussion of the concept of original meaning. And then there’s a discussion of how original meaning is a legal construction, so that leads to construction. And so you have to understand that you construct in a certain way for a certain purpose, so what are the purposes? Which then leads to the political theory, the political theory of my account of originalism, right, the sources of legitimacy. So in other words, if you look at it in a whole, the argument goes like this. You think there’s this thing called originalism and thing called living constitutionalism. I’m telling you, that’s not what’s going on. What’s going on is that in our world, we basically have an ancient constitution and a rapidly-changing world and we have to figure out how to deal with it. There are two standard responses when you face this kind of problem in culture. One is associated with fundamentalism, return, restoration. The other is, that was then, this is now, let’s be modern. And you just see it happening in American constitutional law. That is, to demystify the idea that there’s some way, one is real and the other isn’t. No, they’re both modernist practices dealing with an ancient constitution and a constantly changing world. Then the claim is, okay, but what do you think about originalism? Okay, let me tell you what I think about originalism. I have my own version of it and here’s how it works. How’s it equal to or similar to or different from the other ones on offer? Okay, here it is. Well, why is yours, why does yours have such a thin account of what’s absolutely binding and everything else is a matter of construction? And then there’s a discussion of why it is. And the answer is political theory. In other words, that we understand that the thing that you claim is binding, that you always must follow, whether it’s original intention, understanding, or meaning, is a legal construction. It serves a particular political theory of legitimacy. And now let me tell you what my theory of legitimacy is. That you make law, law remains law until it’s lawfully changed, so the text is binding on you. But it’s inadequate to actually produce sufficient political legitimacy in the context of an old constitution and therefore you need some other source of legitimacy. That source of legitimacy is produced through fights over the construction of the constitution and that is in fact what the history of constitutional development is. It’s fights over how to use the constitution, make use of it as the country changes, and it’s still going on today.
[00:37:03] David: I wanted to follow up right here because the one thing that didn’t track for me was that originalism was necessarily or caused by the problem of an ancient constitution. A couple of things seem to me to not fit with that. One is that we’ve seen rising uses of originalism in state courts, including for interpreting relatively recent constitutions. This is about the way national legal and political culture colonizes state culture, maybe. But it’s certainly the case that they’re responding to different sets of problems with a similar set of tools. Second thing is that textualism and originalism really rhyme very strongly in a lot of ways. Textualism doesn’t involve in any way necessarily old texts. It can involve new texts and yet they’re using the exact same structure of thinking about it. Third is that it’s certainly not an American response. You kind of hit this, but one of my favorites is that the great Islamic jurist of the 9th century, I’m going to get this wrong, Dawud al-Zahiri, was such a strict literalist that he denied precedent or even analogical reasoning. He would make Justice Thomas blush in how strict it was. So it was--
[00:38:08] Balkin: You know, by the way, he had his own RV.
[00:38:13] David: But it’s a, my question is like, so what turns on it being an old constitution here? I mean, other than, you know, other than that it is an old constitution, but it seems like we can get originalism for other sources.
[00:38:23] Balkin: Great question. Great question. Let’s start with the first point. Original, original, let’s talk about originalist argument and originalism. Originalist arguments have been made, really, the first one that I see is 1794 and the debate over the Jay Treaty. And actually it’s, when it’s done, people look at it like, you’re not supposed to do that. In the British tradition, we don’t do legislative history.
[00:38:47] David: Dawud the literalist would have a problem with you about dating it to the 18th century, but keep going.
[00:38:53] Balkin: I understand that, but I’m talking about in the American tradition. So if you want to ask in the history of people, because remember, there’s no American constitution before 1787. There’s an articles of confederation and before that there’s nothing. So you ask, what’s the history of the originalist argument, right? Originalism is a claim about, right? So originalist arguments have existed and they get there, they come from the common law. That is the arguments about original purpose, custom, all the different forms. In fact, there isn’t a single kind of originalist argument. There are arguments from modern authority, there are arguments from custom, there are arguments from convention, there are arguments from original meaning, there are, you see what I’m saying? Originalism isn’t a, it’s a series of different kinds of arguments. So those arguments have existed from the beginning and yes, in fact, they go back to the common law and yes, you’ll find them in other cultures and yes, you’ll find them in Islamic jurisprudence and yes, you’ll find them in Talmudic argument too. Believe me, these topoi are universal. Arguments from purpose, arguments from custom, arguments for what the ancestors did. They go all the way back. Okay, and lawyers use them, they’re part of the toolkit. Originalism is an ideology. It’s an ideology which arose in the 20th century in response to a vast transformation in the nature of the American state. And instead of just simply being content to make originalist arguments, which everybody had been doing forever, they said, no, no, no, don’t make any other kind of argument, only make these. The other arguments are only good to the extent that they’re consistent with this kind of argument. And people may, started making these claims, often not knowing anything about the history. They just, you know, they slapped their, you know, they pounded the table and said, goddamn it, ours is an original jurisprudence of original intention, that’s Hugo Black, who then proceeded to make all sorts of different other kinds of arguments. And then it was Ed Meese in the 80s and Ed Meese actually had his history wrong. He didn’t even know the history. He just asserted it, he didn’t make claims-making. It was part of a political project. And then it got rationalized and, you know, people really spent a lot of time working on it. And out of it developed what we now understand as originalism, academic originalism. There’s also judicial originalism, there’s also the originalism of politics.
[00:41:16] David: But would you tell the same story?
[00:41:17] Balkin: That is new. That is not the work, that is not what’s going on in 1794. Often when you go to Federal Society meetings, people say, oh, the founders were originalists. Founders were not originalists. They were the originals. They were not the originalists. Originalist is one who tries to imitate another. An original is one who’s doing it. And the founders would not recognize the fight between originalism and living constitutionalism. That is not their fight. Their fight is between loose and strict construction of the Constitution. And whether the Constitution is more like a will, like a trust, like a treaty, you see what I mean? That’s what their fights are about. And they didn’t have a single theory of interpretation. They had multiple theories and they didn’t agree about them. And in fact, they fought a lot about interpretive theory too. That’s the first point. Second point is, the reason why-- state courts judges have forever made arguments from purpose. Because they have their own constitutions and so they have the same arguments that lawyers construing the national constitution. What’s interesting is that as the Federal Society grew and became more influential, was able to appoint judges to intermediate appellate courts and supreme courts, they brought their originalist methodology with them. And so the formalism and the various things associated with conservative originalism basically start popping up in state constitutions. But state constitutions are also places where judges are as living constitutionalist as you can imagine, and where sometimes they just cede the question of the meaning of a phrase to the construction, the latest construction of the Supreme Court. This is not an originalist model. This is not, right? But it does reflect the cultural power of conservative originalism. And in fact, it’s even wilder, originalism has made inroads into Canada, the place of the living tree. Why? Because we’re right next to Canada. And so they start doing it. But the kicker, the funny part is the kind of originalism you get in Canada, because of Canadians, is mine. That is to say, the kind of, Canadian originalism looks a lot like living originalism. It looks, I mean whether it’s exactly the same, but it looks much more like what I do than what happens, you know, in San Diego, where I go every year. It’s not surprising. It’s Canada’s importation of American ideas for the purposes of Canadian constitutional culture. There’s, people write me from all around the world, oh yeah, we have originalism in Germany now. Really? When they tell me what it is, it’s not. We have originalism in Israel now. Oh, really? Tell me about it. And it turns out to be the importation of some ideas from America, of the conservative movement that are stitched into an already existing culture.
[00:44:05] David: So I have a couple of questions about textualism.
[00:44:08] Balkin: Yeah, that’s what I wanted to say. Textualism: as old as texts, right?
[00:44:12] David: No, but textualism as opposed to, which again, other arguments.
[00:44:15] Balkin: The ideology of textualism reappears at different points in different cultures, because basically you just don’t trust other people, you know? And so you don’t want to let, obviously sometimes you become a textualist because you don’t want some other institution or person messing around. So you want something that appears to you to be sharp and clear and formal, and you can’t play around with it. This desire is universal, right? In theology, in culture, in law.
[00:44:51] Sam: Sola scriptura.
[00:44:52] Balkin: It always has-- what say?
[00:44:53] Sam: Sola scriptura.
[00:44:55] Balkin: Yeah. And it always has the same problems. That by banishing everything but the scripture, by saying, we will now, you know, you end up always having to do something else, because to make it work. So sola scriptura ends up, Martin Luther says, oh yes, but we also have to listen to the early church fathers. Why the early church fathers? Why not the later church fathers? Well, by then they don’t understand what’s going on. We have to really go back to the early church fathers. And so you see, the attempt to try to do it all out of text always means that you have to bring in other forms of knowledge to basically make the system work.
[00:45:31] David: I have one question prompted by the fact that you brought up going to San Diego. And so--
[00:45:38] Balkin: Lovely town, by the way. I recommend it highly.
[00:45:41] David: The weather can’t be beat.
[00:45:43] Balkin: And the great conference too. The originalism conference every year is like one of the best conferences.
[00:45:47] David: So that’s what I want to talk to you about. So last year we had Cass Sunstein on the podcast talking about his new book. And his book was a lot like the second half of this one, which is, I kind of thought of it as kind of a rapper’s diss tracks about theories of originalism. It’s like “Not Like Us” or “Takeover” or “Ether,” but about the work of Rappaport, Baude and Sachs, McGinnis, and so forth. Your book is a study in rhetoric. I want to know what the game here is about both levels of it in terms of-- maybe I’ll ask it a different way, why did two people as different as you and Cass Sunstein feel the need to go through theories of originalism and explain, kind of pick them out one by one, given that one of ur-points is that their influence on judicial originalism is a little like mixed?
[00:46:36] Balkin: What was it Willie Sutton said about robbing banks? That’s where the money is?
[00:46:42] David: I think that part of the point is that it’s not-- originalism may be, but that academic theories of originalism bear a weak relation to judicial originalism.
[00:46:53] Balkin: Yeah, they do. On the other hand, a lot of people haven’t gotten the memo. So, I mean, if you ask Clarence Thomas, Clarence Thomas would say, no, I don’t think there’s much daylight between me and academic originalists. I mean, in practice, the justices are what I call cafeteria originalists. They go to the cafeteria, they pick the chocolate cake, and they leave the boiled kale there. So, but they don’t know that this is going on. They don’t, it doesn’t seem to penetrate them. Let me give you a wonderful example. Within a week or, two cases are decided. One is Rahimi, in which the Supreme Court upholds a law involving disarming people who are subject to domestic violence restraining orders. And this required the court to step back from the opinion in Bruen that Thomas had written. And everyone joins it except Thomas, who basically says, how dare you, originalism, pounds the table. And Kavanaugh and Gorsuch felt that they had to write long essays defending their fidelity to the faith. I mean, these are amazing essays to read. Kavanaugh’s essay goes on forever, and he says, I’m an originalist. I’m just like Scalia. I’m an originalist. Scalia is name checked multiple times. And Gorsuch, he says, and judges are just like umpires. And if you don’t adhere to original meaning, citing Bork, you have nothing to go on. There’s no values, just your values. And on and on and on, he does this. And then Gorsuch writes the opinion saying the Constitution’s commands are frozen in amber and our only job is to implement them without our own values entering into law. So these are all, that’s Rahimi. Re-statement of the faith. Sola scriptura, as Sam would say. And then--
[00:48:44] David: But also modern, not ancient Court figures. But yes.
[00:48:48] Balkin: And then the next week comes Trump v. United States. An opinion that has no basis in any of the things that they said were the most central and important, right? And no sense on the part of anybody on the court that they were doing anything that was inconsistent. This, you know, they had not gotten the memo. They are originalist till the day they die. Oh, and by the way, here’s Trump v. United States. And it’s all based on consequentialist reason and non-originalist precedents. And it is well, it has it’s, all sorts of problems, but methodologically, it has nothing to do with adherence to originalism.
[00:49:28] David: So, I just want to follow up on this point. Is the point of this, of the second tranche or third tranche of the book, to convince people that they’re not understanding their own, themselves, that they say that you’re speaking to your San Diego conference, you’re not understanding either what courts are doing or what you yourself are doing? Or is the point to say something else than that?
[00:49:49] Balkin: Something else. I mean, my friends in San Diego know exactly what they’re doing. They’re not stupid. They understand what they’re doing. They’re engaged in a reform project. The reform project is tied to, although not exactly the same as, the conservative legal movement. It’s connected to it, but it’s not the same as it. And they’re, you know, and these people are acting in good faith and they’re doing historical research and they’re arguing and I go there and I talk to them all the time and I find this the work very interesting and I engage with it all the time. I’m saying I don’t agree with your theory of interpretation. I think your theory of interpretation doesn’t work. I think your theory of interpretation will create problems for you that you, you know, you’re unable, you’re unwilling to acknowledge. And there is a way to be an originalist and to take seriously the history of the country, not only the history of the founding, but other parts of history and to incorporate it into legal argument and to be a consistent, coherent originalist. You just guys aren’t doing it right. I’m doing it right. So that part of the book is an explanation of how you should do it. Cass is not an originalist. And Cass doesn’t, Cass would disagree with me. He would say, no, I don’t agree with what you’re doing, Jack. But I think I’m right. So I wrote a book.
[00:51:07] David: So fuck that guy. No.
[00:51:09] Sam: OK, so you know, you alluded earlier to the last tranche, which is about the alleged professional differences between lawyers and historians. So I want to focus the last set of questions on the penultimate tranche, which is, if I may, original in this book, in your life work, it’s attention to the theme of memory. And so I have a few questions. And first, just I want to hear some definitions, because I confess I didn’t see exactly where you were defining terms, in particular, what you think the relation between memory and history is. And I ask because that’s one of the classic scholarly debates about memory. I mean, most famously in Jewish history, in which a former colleague of mine, Yosef Yerushalmi, claimed that there’s an absolute distinction, Jews had memory and not history, and history arose as a surrogate faith for those who had lost it in modern times. My teacher, Amos Funkenstein, cites Hegel, fights back, and says, no, these are both forms of historical consciousness. And I guess I want to hear where Balkin is, because if I were to take a guess, it seems like your theory is that they’re distinct but, in Funkenstein’s sense, but for you, they’re both terrains of ideological, manipulable rhetoric. It’s just that the memorial claims are like different sociologically. They might involve more popular actors. But I’m not sure. So basically, what is memory as opposed to history?
[00:53:15] Balkin: Memory is what we remember about the past. History is the practice.
[00:53:19] Sam: We being anyone?
[00:53:21] Balkin: Yeah, because collective memory.
[00:53:24] Sam: Because isn’t history about the past?
[00:53:27] Balkin: Let me finish.
[00:53:29] Sam: Oh, sorry.
[00:53:30] Balkin: There’s also memory within professions. There’s memory within nations. There’s memory within lots of groups. And in fact, in the original sort of studies of collective memory, there’s also individual memory of the past, your life and what happened and what you remember about your life and don’t remember. But collective memory is my focus in this book. Which is what we, a group, remember, but the group could be a religion, it could be a profession, it could be a nation. And, you know, Renan’s view that a nation is constituted by its remembering and forgetting. So memory is what you remember about the past. And what’s characteristic about memory is that it’s often imputed with values. What we should do and shouldn’t do, what we did then, what we shouldn’t do now. It’s often normative and even prescriptive. Memory is value-laden. The past, on the other hand, you know, is not. There were people with values in it, but the description of what happened in the past doesn’t have to be value-laden in the same way that memory is. But I would say that the relation between history, the practice, there’s the past, there’s history, and there’s memory, you see? There’s what happened in the past. There’s the attempt to record and explain what happened in the past, which is what historians claim history is. And there’s memory, which can be done by many different people, any groups, and there’s collective memory. The relationship between history and memory is one of a nested opposition. That is, they are deeply connected to each other, inescapable from each other, but partially differentiated from each other. And so too we could say that the relationship between history and the past is a nested opposition. The practice of relating and explaining what happened in the past, which is the work of history, right? And the past itself. The attempt to try to separate history from the past and to claim that history is free-floating from the past will never succeed. But the attempt to claim that history simply is the past, is nothing more than a Rankean reporting of what was, won’t succeed either. These are nested oppositions. When we talk about collective memory, which is the theme of the book, we’re interested in the question of what Americans remember about their past in order to make arguments with each other about what they should do in the present and the future. So they are engaged in disputes about the past through collective memory, which they are using to persuade each other. So it’s normative and prescriptive. The past and then historical accounts of the past become elements in our disputes with each other about who we are, what things mean, and what we should do in the future. This is the relationship between the past, the practice of history, and the sociological phenomenon called memory.
[00:56:29] Sam: Okay, so before I ask the question I really want to ask, I kind of have a history of scholarship question because it honestly puzzled me when, as you noted a couple years ago, our colleague Reva Siegel introduced constitutional memory as a category and you credit her for introducing it and it was like a couple of years ago, and then you’re in parallel piggybacking on kind of bringing constitutional memory into focus in an original way but also in a sense as if there had not been this enormous wave of attention to history and memory elsewhere in the academy. And that’s fine because, you know, as you say there are different disciplines and they work on different schedules and timelines but I’m just curious if--
[00:57:42] Balkin: One of the chapters in the book, as you know, is an attempt to try to summarize that enormous that enormous literature going all the way back to the 20s and then Renan.
[00:57:54] Sam: Well you cite Maurice Halbwachs who was kind of retroactively anointed the founder of memory studies and then you cite some sociological essays chiefly.
[00:58:05] Balkin: That’s because you know who I am.
[00:58:08] Sam: Exactly, so I, you know, it’s kind of, I mean it’s not to wax autobiographical but, you know, I’ve published my first article in the Israeli journal History and Memory because the 1990s were like the era for historians when this interest peaked and I wrote up my first book about Holocaust memory and so forth and so on. But it, do you have a theory of the belatedness of, you know, the law academy in taking interest in this topic?
[00:58:45] Balkin: Yes I do. And it’s, I’m glad that you put it that way. I mean the idea of memory has been, it’s not only just existed in culture, it’s been theorized for a long time. It’s very important in many disparate disciplines but it wasn’t very important in law. I mean I wouldn’t say that this book is an attempt to try to correct for that deficiency, although I hope it helps. And as you know I’m a sociologist of knowledge more than an historian so when you look at the literatures I cite they come out of sociology more than they come out of history. But that’s not throwing shade on historians, it’s just that’s where I am, you know, that’s where I’m familiar with and come from.
[00:59:26] Sam: It takes all kinds.
[00:59:28] Balkin: Yeah, but anyway I think the reason is that memory, the attempt to write about memory, the attempt to, you know, to grapple with memory as something separate either from the past or from history is, requires a certain degree of self-consciousness. It requires a certain degree of distancing of yourself from the past and understand, and also from the professions of the recording of history. That is to say you have to have a certain degree of self-consciousness about what you’re doing. Lawyers have a tendency to resist self-consciousness about the artificiality of their practices almost as a requirement of the preservation of their legitimacy. And so it wouldn’t be surprising that one of the last places where memory studies would appear would be in law and in even in constitutional law and discussions. Although I suspect that I suspect that my friends in STS [ed. note: science and technology studies] would disagree with me and say that the last place would be in particle physics. But anyway ,you get the idea that the self, history has had to assimilate the problem of being self-conscious about your practices and right, they’ve had to do it for a long time. So it’s kind of like they’ve been immunized, inoculated. Law, it’s much more difficult. That’s why it arrived so late. That’s my thesis. I don’t know if it’s true. What do you think? Do you think that’s right?
[01:00:58] Sam: I think it has to do with the, you know, crisis/obsolescence of liberal constitutionalism. And I, you know, I haven’t developed a fancy theory about this, but I suspect that, especially in the forms in which people are making claims about constitutional memory, it’s really usually the memory of others and recognizing the kind of loss of control over constitutional culture, but still kind of, instead of looking at liberal memory for having given constitutionalism a second lease on life, the memory of the Warren Court, there’s a discourse about a kind of delegitimating discourse about right-wing memory and its rhetorical power over the lost object of the Constitution. But that’s more of an interpretation of Reva than of what you do in the book. But I do want to kind of, you know, ask a kind of more political question as the last one for the episode, because you in your guise as a kind of apolitical anatomist of discourse, you do sometimes lapse into morality and politics. And you mentioned how in the originalism sections, you make claims about legitimacy, blah, blah, blah. I’m interested in Chapter 13 in the memory section, because it seems like you kind of make a normative move there once you’ve kind of done some theoretical work about the sociology of memory. But it seems to be like a normative argument about the value of self-mystification through memory. So, what I got from Chapter 13 is you say, well, we could remember the past in different ways, and the inclusionary ways are better. And so, let’s like prioritize in a kind of sense that memory is manipulable and a rhetorical product and so forth, the politically liberal forms of memorial illusion, since it’s going to be partial and selective.
[01:03:35] Balkin: Illusion is, well, I think illusion is the wrong word to use.
[01:03:39] Sam: But it’s sort of saying we have to come to a destination of recognizing the law as our own, the trouble is it’s not. So, let’s remember the parts that make it easier to sustain this mystification. So, like, why not demystify? That’s my basic.
[01:03:58] Balkin: Illusion, mystification, so interesting. Sam, you don’t believe, you don’t believe that you’re a walking mystification. You don’t believe that you’re harboring continual illusion when you engage in your writing about politics and what America should do. You don’t believe that at all. You believe that you’re trying to make sense of the world in a way that will persuade others that you are right. And you think you’re right. You don’t say, oh, before I start this op-ed, let me tell you that I am harboring delusions and mystifications.
[01:04:30] David: That’s just what everybody else thinks.
[01:04:32] Sam: Yeah, I’ve accepted the views of the critics.
[01:04:40] Balkin: No, we are in the present trying to figure out what we should do. We’re trying to figure out the future of this country. We’re trying to decide what is right for us.
[01:04:55] Sam: But why would a usable past be the right thing?
[01:04:58] Balkin: In that project, the past is indispensable. It’s just indispensable.
[01:05:04] Sam: Or dispensable.
[01:05:06] Balkin: Well, there’s also remembering and forgetting.
[01:05:10] Sam: Why a usable past for liberals and not a dispensable past for radicals? I mean, why?
[01:05:17] Balkin: You mean, I’m sorry, I have to figure out what you mean by a dispensable past.
[01:05:22] Sam: Well, we could say, I mean, wasn’t the 1619 Project about saying, let’s just cut ties?
[01:05:29] Balkin: Oh, that’s just the classic modernist move. That was then, this is now, let’s leave the past behind. And let’s just go forward. The problem with the past, leaving the past behind, has to do with something you left out in your discussion in the first page of the book about the past. You read me as saying the past was merely a rhetorical resource. But I don’t say that in the book. I say two things about the past, that history is something that we argue about. So therefore, it’s a resource for argument, but it is not merely a rhetorical resource. We are made out of history. History is inside us. And every attempt to leave the past behind, we end up dragging the past with us. And we can’t escape it. And that’s why history is indispensable. And that’s why it matters what we remember about the past.
[01:06:26] Sam: Well, that was incredibly eloquent. I just, I’m personally not sure it’s true.
[01:06:28] Balkin: I’ll let you work that out with your therapist.
[01:06:30] Sam: But, you know, different people have said that, Burke and Marx, and it really depends which, you know, which one you mean.
[01:06:42] Balkin: I could mean both!
[01:06:44] Sam: Because Burke said it because he was committed to the indispensable of continuity with tradition, which you say is a rhetorical form, but whatever. Whereas Marx said it because he thought there could be a fundamental break if we got over our penchant for reviving the past in a very different present.
[01:07:13] Balkin: My view is a little different. I would associate my view with something a little more like Stephen J. Gould, in which he pointed out that the development of species often has ruptures and breaks, but that the ruptures and breaks are conditioned by the morphology and genetics of the organism before the break occurs. And so that there’s always things that are brought with you from the past that shape even the revolutionary moments. And that revolutions don’t happen everywhere. They only happen in parts of the thing. And therefore, you’re always bringing the past with you. And so that’s why, although the modernist desire to break from the past finally and move forward into the present is tempting and desirable in some ways, it isn’t a full account of the ways in which we change.
[01:08:11] David: The past is never dead. It is not even past. But our time is. So I just want to say here to say thank you to Jack Balkin for coming on. I want you all to go out and buy his book, Memory and Authority: The Uses of History in Constitutional Interpretation. And I want to say good night and good luck. So thank you so much, Jack.
[01:08:40] Balkin: Thank you guys.
[01:08:43] Sam: Thank you for doing this.